9 Ways to Recognize Risk in Your Employee Handbook for 2019

Having an employee handbook is essential as it can set forth various workplace rules and policies and also deal with myriad employee issues that arise time and again. Additionally, it can promote fairness and consistency across the board while showing courts, plaintiffs and government agencies that an employer is legally compliant.

However, if your organization fails to update or enforce its handbook on a frequent basis, it can provide a roadmap for an employee-side attorney. What’s more, an employee handbook can be a ticking time bomb if it sits on a shelf, contains wrong or misleading information or is not used properly by the employer.

In a recent XpertHR webinar, Littler employment attorney Meredith C. Shoop identified several areas of risk in an employee handbook to which an employer must pay special attention.

1. Have the Right Policies in the Employee Handbook

It is strongly recommended that an employer include policies that are not only legally required, but will also protect the employer’s legitimate business interests. Such policies should include:

  • An at-will statement reaffirming that the handbook is not a contractual agreement;
  • EEO policies prohibiting discrimination, harassment and retaliation;
  • Wage-and-hour policies letting employees know how time will be recorded;
  • Time off policies notifying employees of paid sick leave, paid time off or other leaves; and
  • Code of conduct and dress code policies so employees know what is expected of them.

It is also important to be aware of employee handbook statements that are potentially harmful to an employer such as:

  • Aspirational statements as opposed to actual practice;
  • Contractual provisions which should be in separate agreements tailored to each individual’s position;
  • Provisions limiting employer discretion to change or modify practices (i.e., discipline);
  • Job descriptions which may change over time and be too detailed; and
  • Any policies conflicting with contractual or legal commitments.

2. Take the Right Approach

According to Shoop, if your company operates in multiple states or multiple jurisdictions in the same state, it must make sure it takes the right approach with the employee handbook.

Some suggested approaches include:

  • Instituting a national handbook and separate state supplements;
  • Separate handbooks for each state. However this may be time consuming and redundant;
  • A national handbook with required policies for each state. This may give employees too much information; and
  • An employee policy portal where each policy statement is separate and not visible to all employees.

3. Be Careful about FMLA Compliance

If the federal Family and Medical Leave Act (FMLA) applies, an employer must provide written notice to employees regarding their rights. Shoop noted that an employer should err on the side of caution and include a notice in the employee handbook that sets forth same information as the FMLA workplace poster, including:

  •  Leave entitlements;
  • Benefits and protections;
  • Eligibility requirements;
  • How to request leave;
  • Employer responsibilities; and
  • Enforcement.

4. Beware of Neutral Attendance Policies

An employer should be cautious about neutral attendance policies stating that it will treat all absences for sickness or otherwise the same. This can be extremely risky as such policies fail to properly account for state laws that provide time off (such as paid sick leave) or that prohibit an employer from disciplining an employee for using protected time off; and disability-related absences protected by the Americans with Disabilities Act (ADA) or the FMLA.

5. Don’t Have a Policy of Rounding Time

One of Shoop’s pet peeves in this high-tech age involves employer policies to round off work time. She said such rounding policies are no longer necessary and may lead to wage and hour issues and possibly even class action lawsuits.  With modern methods of computation, Shoop explained that an employer should be able pay each worker for every actual minute worked.

6. Make Sure Confidentiality Policies Are Legal

Even though an employer may seek to protect its own confidential information and trade secrets, it should be careful not to overstep boundaries.

For instance, be aware that the National Labor Relations Act (NLRA) protects the right of union and nonunion employees to discuss wages, hours and working conditions so an employer should not try to silence employees on these issues. It also should not attempt to prevent employees from participating in any government agency investigation tasked with upholding employment laws.

Here are some examples of information an employer may lawfully protect:

  • Technological data;
  • Business strategies;
  • Research and development;
  • Proprietary production processes;
  • Customer lists;
  • Computer programs and codes; and
  • Attorney-client privileged information.

7. Remember the NLRA Still May Have Teeth

Even though the National Labor Relations Board (NLRB) under the Trump administration has become noticeably less aggressive, it remains important to be cautious about handbook policies infringing on the employee right to engage in protected concerted activity. That means treading carefully with the following:

  • Employee conduct rules;
  • Recording policies;
  • Non-solicitation policies; and
  • Conflict of interest policies.

8. Handle Weapons-Free Workplace Policies with Caution

Shoop reminds employers that while they have a vested interest in maintaining a safe and secure workplace, differences in state gun laws may affect weapons in the workplace policies.

For instance, some states ban employers from prohibiting employees from having guns locked in their cars and out of plain sight in the employer’s parking lot. As a result, she suggests the best bet is to have a strict no weapons policy except where prohibited by state law and make sure the employer’s policy is tailored to the laws of each state.

9. Remove Any Bans on Pay Secrecy

Many states and localities are taking a more aggressive approach with respect to pay equity. In seeking to achieve fair pay across the board, states and localities are enacting pay equity laws prohibiting an employer from requesting salary history information and from banning wage discussions among co-workers. Employee handbooks should be compliant and eliminate any language that either explicitly or implicitly prohibits employees from discussing their wages, benefits, or other compensation.

What’s your biggest employee handbook concern for 2019? Let us know by leaving a comment below.


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